Citation Nr: 0126062
Decision Date: 11/07/01 Archive Date: 11/13/01
DOCKET NO. 96-42 685 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for asthma, on a direct
basis and secondary to tobacco use.
2. Entitlement to service connection for pneumonia.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from September 1954 to
September 1956.
This case comes to the Board of Veterans' Appeals (Board)
from a March 1995 RO decision that denied the veteran's
claims for service connection for asthma and pneumonia. In
May 1998, the Board remanded the case to the RO for further
evidentiary and procedural development. In an April 1999
decision, the RO specifically denied service connection for
asthma as secondary to tobacco usage, and this is part of the
appeal. In October 1999, a videoconference hearing was held
before a member of the Board.
In a December 1999 decision, the Board denied the veteran's
claims for service connection for asthma, including as
secondary to tobacco use, and for pneumonia.
The veteran then appealed to the United States Court of
Appeals for Veterans Claims (Court).
In November 2000, the VA Secretary filed a motion requesting
that the Court vacate the Board's December 1999 decision and
remand the case for consideration of the newly enacted
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9. 2000). This motion was granted by a
January 2001 Court order, and the case was then returned to
the Board.
In July 2001, the veteran submitted an additional medical
record, and in August 2001, he indicated he waived RO
consideration of the evidence. In August 2001, the veteran's
representative submitted additional written argument in
support of the veteran's claims.
FINDINGS OF FACT
1. Any pneumonia in service was acute and transitory and
resolved without residual disability.
2. The veteran did not develop chronic nicotine dependence
in service, and tobacco use in service did not the result in
his asthma which developed many years after service and was
not caused by any incident of service.
CONCLUSIONS OF LAW
1. Claimed residuals of pneumonia were not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001).
2. Asthma was not incurred or aggravated by active service,
and it is not secondary to tobacco use in service. 38
U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. §
3.303, 3.310 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran served on active duty in the United States Army
from September 1954 to September 1956.
The Board notes that the veteran's service medical records
are unavailable, having been destroyed in the 1973 fire at
the National Personnel Records Center (NPRC).
Post-service medical records are entirely negative for
treatment of pneumonia.
Private medical records from J. M. Croft, M.D. dated from
1987 to 1993 reflect treatment for asthma and asthmatic
bronchitis. A November 1987 treatment note shows that the
veteran reported a one-month history of asthma; he said this
was his first episode in eight years. A May 1991 treatment
note indicates that the veteran had asthma since age 43, but
it had been worse for the past six years. The veteran
reported that he had not smoked for 25 years.
Private medical records dated from February 1988 to March
1993 from Grace Hospital reflect treatment for asthma. A
February 1988 admission note shows that the veteran reported
a history of asthma and chronic obstructive pulmonary disease
(COPD). The report concluded with a diagnosis of asthma. An
August 1989 chest X-ray study showed findings compatible with
emphysematous change; the diagnostic impression was
hyperaeration without evidence of acute infiltrate or
atelectasis. A November 1989 history and physical, completed
by Dr. Croft, indicated that the veteran was well known to
him, and had recurrent bronchial asthma and possibly some
underlying COPD. He noted that the veteran had asthma for
approximately 5 years, and that both his mother and brother
had asthma. He indicated that that the veteran did not
smoke, and diagnosed status asthmaticus. A May 1991
admission note shows that the veteran presented with
complaints of chest pain; the examiner noted that the veteran
was 57 years old, had asthma since age 43, and had not smoked
for 25 years. The admitting diagnoses were chest pain and
diaphoresis, rule out myocardial event, asthma, and a
positive family history for heart disease and diabetes
mellitus. On discharge in June 1991, the diagnoses were
chest pain, with no evidence for an acute myocardial event,
symptomatic asthma, and a positive family history for heart
disease and diabetes mellitus. A July 1991 admission note
shows that the veteran reported a history of asthma for the
past 20 years; the diagnosis was asthma. A March 1993
admission note indicates that the veteran had asthma since
age 43. A chest X-ray study showed no active lung disease.
A March 1993 discharge summary indicates diagnoses of chest
pain of undetermined etiology, cardiac arrhythmia, severe
bronchial asthma, and hypertension.
VA outpatient treatment records dated from July 1988 to
October 1993 reflect treatment for asthma. An August 1988
note from the pulmonary disease clinic shows that the veteran
reported that his asthma began precipitously in October 1987
with a lower respiratory infection, and he previously had
asthma in 1976. He reported that he began smoking at age 13,
and quit one year ago. He also reported that his son had
asthma. The diagnostic impression was asthma, controlled. A
December 1988 note shows that he was treated for bronchitis.
A medical record dated in February 1993 from McDowell
Hospital reflects that the veteran underwent pulmonary
function tests and was diagnosed with asthma.
In October 1993, the RO received the veteran's claims for
service connection for asthma and pneumonia, which he said
were incurred in November 1954 at Fort Jackson, South
Carolina. He said he was treated for these conditions at the
Army Hospital at Fort Jackson. He reported that after
service, he was treated for asthma at Grace Hospital from
1988 to 1993, and at the Asheville VA Medical Center (VAMC)
from 1988 to the present. He said that [redacted] knew that he
had asthma and pneumonia in November 1954.
Records from the Social Security Administration (SSA) reflect
that the veteran was awarded disability benefits in October
1993 based on a primary diagnosis of asthma, and a secondary
diagnosis of cardiac dysrhythmia. It was determined that the
disability began in September 1991. In a May 1988 Disability
Report, the veteran stated that his disabling condition was
severe bronchial asthma and COPD, and that such conditions
first bothered him in 1969. He said medication controlled
the conditions until October 1987, when they worsened. He
also reported that Dr. Croft treated him from October 1987 to
March 1988 for asthma and "walking pneumonia."
In a Request for Information Needed to Reconstruct Medical
Data dated in May 1994, the veteran stated that he was
treated for bronchial pneumonia in November 1954 for one week
at the hospital in Fort Jackson, South Carolina, and that he
was treated for a high fever for two weeks in the summer of
1955 at Fort Benjamin Harrison, Indiana.
In an undated statement, the veteran reported that he was
treated by Dr. K. Sturckow from 1965 to 1985 for bronchial
asthma, but he did not have the relevant medical records. He
said that he was treated for asthma by the VA in 1987.
In November 1995, the veteran submitted two lay statements;
one letter from a fellow servicemember who was stationed with
him during the time of his hospitalization during service,
and one from a person who was a neighbor at that time. In an
April 1995 statement, the veteran's fellow servicemember
related that he served with the veteran, and visited him in
the hospital at Fort Jackson, South Carolina, when the
veteran was hospitalized in November 1954 for pneumonia or
bronchial trouble. In an October 1995 statement, the
veteran's neighbor when the veteran entered military service
indicated that the veteran was hospitalized with pneumonia in
November 1954, and was also hospitalized in the summer of
1956 for a period of two weeks.
In February 1996, the veteran related that he was assigned to
the 506th Airborne Infantry Regiment from October 1954 to
December 1954, was then assigned to the Pipeline Detachment
1, Headquarters Company, 101st Airborne Division. He
enclosed a copy of orders dated in March 1955 that noted that
he was then assigned to Adjutant General School at Fort
Benjamin Harrison in March 1955.
In April 1996, the RO requested that the NPRC conduct a
search for the veteran's service medical records and for any
hospital extracts from the Surgeon General's Office (SGO)
concerning the veteran. A second request was made in July
1996.
In an August 1996 memorandum, the NPRC indicated that a
search of the morning reports from the 101st Airborne
Division, Headquarters Company, Detachment 1 from November
1954 to March 1955 revealed no remarks regarding any illness
pertaining to the veteran. A search of the morning reports
from Fort Benjamin Harrison from June 1955 to September 1955
was also negative.
By a statement dated in September 1996, the veteran asserted
that his asthma was aggravated during service by cigarette
smoking. He said that after separation from service, he was
first treated for asthma at age 33 or 34. (The veteran was
born in November 1933, and he was 22 years old when he was
separated from service in September 1956.)
By a letter dated in February 1997, a private physician, K.
H. Sturckow, M.D., indicated that he treated the veteran for
asthma from March 1964 to July 1985. He said that the
veteran's asthma was due to excessive smoking, and said he
told the veteran to stop smoking in 1964. He stated that the
veteran's asthma worsened over time, and he was treated four
times for asthma in 1985. He opined that the veteran's
medical retirement in 1991 was directly due to the increase
in his asthma secondary to cigarette smoking.
By a letter dated in April 1997, the veteran reported that he
began smoking cigarettes in his late teens, and that during
service, he increased the number of cigarettes he smoked per
day as he was given free cigarettes. He said he was
hospitalized with bronchial pneumonia during service in
November 1954, and he asserted that such condition caused his
current asthma. He said he was hospitalized for bronchial
problems, pneumonia, and a high fever during service in July
1956. He said he continued to smoke after separation from
service until Dr. Sturckow told him to stop. In another
April 1997 statement, the veteran said that medical records
from Dr. Sturckow were unavailable.
By a letter to Dr. Sturckow dated in May 1997, the RO
requested that he provide any private medical records
relating to the veteran. Another request was sent in
September 1997. Dr. Sturckow did not respond.
Private medical records from P. M. Kirchoff, M.D., dated from
October 1997 to July 1998, reflect treatment for allergic
rhinitis and chronic obstructive asthma.
A November 1997 report of contact indicates that the veteran
related that medical records from Dr. Sturckow were
unavailable.
By statements received in December 1997, the veteran said
that no medical records were available from Dr. Sturckow as
they had been destroyed, and he had obtained Dr. Sturckow's
February 1997 letter by writing to him and asking for same.
He said he had asthma since age 31, when he was diagnosed
with the disorder by Dr. Sturckow.
In May 1999, the Board remanded the veteran's case to the RO
for adjudication of the veteran's claim for service
connection for a lung disorder secondary to tobacco use, and
to obtain SSA records.
By a letter to the veteran dated in June 1998, the RO asked
him to provide information regarding any post-service
treatment for asthma or pneumonia.
By a statement dated in June 1999, the veteran reiterated
many of his assertions. He said that he incurred bronchial
pneumonia during service (and was hospitalized twice during
service for the condition), and that he only claimed service
connection for a lung condition secondary to tobacco use
after he learned that his service medical records were
unavailable. He stated that he quit smoking at age 32 or so,
and had asthma since the early 1960s. He said that when he
applied for SSA benefits, he did not provide any information
regarding his past medical history because his attorney told
him the SSA was not interested in that information.
At an October 1999 Board videoconference hearing, the veteran
reiterated many of his assertions. He testified that he was
hospitalized for a bronchial condition at Fort Jackson, South
Carolina. He stated that subsequently he was only treated
for colds until his second hospitalization at Fort Benjamin
Harrison. He stated that he was told he had bronchial
problems. He said that during his second hospitalization, J.
[redacted] called him in the hospital. He testified that he
was treated for asthma by Dr. Sturckow since the early 1960s,
and reiterated that his medical records were unavailable. He
stated that he smoked cigarettes prior to service, and that
during service he increased the amount of cigarettes he
smoked. He said he continued to smoke until Dr. Sturckow saw
him in 1964. He denied receiving treatment for a lung
condition after separation from service until 1964.
In a November 1999 statement, a fellow servicemember, Mr. T.
T., stated he served with the veteran at Fort Benjamin
Harrison in 1955 and 1956, and he recalled that in 1956 the
veteran became ill and had to be hospitalized for unknown
reasons.
In a December 1999 statement, Dr. Kirchoff stated that the
veteran had chronic obstructive asthma and had been treated
for a number of years. The doctor noted that infections can
unmask asthma. Dr. Kirchoff said the veteran "did have
pneumonia in the service and while I cannot prove it was a
cause of asthma, it may have been the reason it became
clinically evident."
In July 2001, the veteran submitted a copy of an apparently
recent letter which had been sent to him by a VA clinic, and
in August 2001, he waived RO consideration of this evidence.
The VA clinic letter notes the results of recent diagnostic
tests, and the comments section discusses the veteran's
osteoporosis. The letter also notes that chest X-rays showed
emphysema.
II. Analysis
The veteran claims service connection for asthma (including
as secondary to tobacco use) and pneumonia. The now-vacated
December 1999 Board decision denied the claims as being "not
well grounded" under law then in effect, 38 U.S.C.A.
§ 5107(a) (West 1991). Subsequently, in November 2000, the
Veterans Claims Assistance Act of 2000, Pub, L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) was enacted, and this eliminates
the concept of a well-grounded claim. Thus the veteran's
claims must now be decided on the merits.
The VCAA, and a recently enacted companion VA regulation,
also redefine the obligations of the VA with respect to
giving notice to a claimant of evidence needed to
substantiate a claim, and assisting in developing evidence
pertinent to the claim. See 38 U.S.C.A. §§ 5103, 5103A (West
Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. § 3.159). Regarding the
duty to notify, the Board finds that the RO's
development/notice letters, rating decisions and
statement/supplemental statements of the case furnished to
the veteran and his representative in connection with this
appeal provided sufficient notice of the kind of information
he would need to substantiate his claims. With respect to
the duty to assist provisions, the record reflects that
development efforts have been completed to the extent
possible. Service medical records have been destroyed.
Reasonable attempts have been made to obtain identified post-
service medical records. The veteran has had a hearing on
appeal. Under the standards of the new regulation, a VA
examination or opinion is not necessary to decide the claim.
Accordingly, the Board finds that the notice and duty to
assist provisions of the new law and regulation have been
satisfied.
Service connection may be established for disability due to a
disease or injury which was incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may also be granted on a secondary basis
if a claimed disability is found to be proximately due to or
is the result of a service- connected disability. 38 C.F.R.
§ 3.310(a).
Service connection for an injury or disease attributable to
the use of tobacco products during service is prohibited as
to claims filed after June 9, 1998, but the veteran filed his
claim before then, and thus consideration may be given to his
claim under the prior law. See 38 U.S.C. § 1103 (West Supp.
2001); 38 C.F.R. § 3.300 (2001).
Under the old law applicable to this case, direct service
connection may be established for disability shown to result
from tobacco use during active service. Moreover, if it is
shown that the veteran developed nicotine dependence in
service, and that the nicotine dependence led to a later
disability, the later disability may be service connected on
a secondary basis. To establish direct service connection,
there must be medical evidence of a current disability,
medical or lay evidence of tobacco use in service, and
medical evidence of a relationship between the current
disability and tobacco use during active service, as
distinguished from post-service tobacco use. For claims
alleging secondary service connection for a current disease
on the basis of nicotine dependence acquired in service,
there must be medical evidence of a current disability,
medical evidence that nicotine dependence arose in service,
and medical evidence of a relationship between the current
disability and the nicotine dependence. VAOGCPREC 2-93 (Jan.
13, 1993), 58 Fed. Reg. 42,756 (1993); VAOPGCPREC 19-97 (May
13, 1997) 62 Fed. Reg. 37,954 (1997); see also Davis v. West,
13 Vet. App. 178 (1999).
As noted, there are no available service medical records from
the veteran's period of active duty service, September 1954
to September 1956. The veteran has maintained that he was
treated for pneumonia in service, and that after service he
was treated for respiratory problems in the early 1960s
(although some of his statements assert even later initial
post-service treatment).
The first post-service medical evidence of asthma is dated in
1987. A private medical record dated in November 1987 from
Dr. Croft indicates that the veteran was treated for asthma
and reported that the current episode was the first episode
in eight years. In a May 1988 Disability Report submitted to
the SSA, the veteran stated that his disabling condition was
severe bronchial asthma and COPD, and that such conditions
first bothered him in 1969. An August 1988 VA outpatient
treatment record shows that the veteran reported that he had
asthma in 1976, and his current asthma began in 1987. The
report also noted the veteran's claim that he began smoking
at age 13, and quit smoking one year ago. In November 1989,
Dr. Croft indicated that the veteran had asthma for about 5
years, and did not currently smoke. A May 1991 treatment
record from Grace Hospital indicates that that the veteran
had asthma since age 43 (which would be in 1976) and had not
smoked for 25 years. In February 1997, another private
physician, Dr. Sturckow, indicated that he treated the
veteran for asthma from 1964 to 1985, and he opined that the
veteran's asthma was secondary to cigarette smoking. There
are no clinical records from Dr. Sturckow, and the veteran
has repeatedly related that the records are unavailable. Dr.
Kirchoff has been treating the veteran for asthma in recent
years, and in her December 1999 statement the doctor noted
she could not prove that reported pneumonia in service was a
cause of the asthma but the pneumonia may have been the
reason it became clinically evident. There are no post-
service medical records reflecting pneumonia or residuals of
prior pneumonia.
With regard to the claim for service connection for
pneumonia, even assuming, as alleged, that the veteran had an
episode of pneumonia in service, he has presented no medical
evidence of current pneumonia (or residuals of prior
pneumonia). The medical evidence tends to show that any
episode of pneumonia in service was acute and transitory,
resolving without residual disability. Without a current
disability from pneumonia, service connection may not be
granted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992)
(regardless of disease or injury in service, service
connection requires a current related disability).
As to the claim for service connection for asthma, without
regard to the theory of tobacco use, asthma is first shown
years after the veteran's active duty and there is no
competent medical evidence linking it to his service. Dr.
Kirchoff's December 1999 statement acknowledges that it could
not be proven that reported pneumonia in service was a cause
of the veteran's asthma. This doctor's statement, that the
reported pneumonia "may have" been the reason the asthma
became clinically evident, is speculative at best, conflicts
with evidence showing no asthma until years after service,
and does not establish causation between reported pneumonia
in service and the asthma which appeared years later.
As to the specific claim that asthma is due to tobacco use in
service, while medical evidence has been submitted showing
that the veteran's asthma may be related to his former
cigarette use, there is no medical evidence that the lung
disease, which first developed years after service, is linked
to his smoking during his two-year period of active duty, as
opposed to smoking for years before and after service. No
medical evidence has been submitted to show that, even though
he smoked in service, he developed a chemical dependency on
nicotine during active duty. The weight of the credible
evidence establishes that the veteran's asthma began many
years after service and was not caused by any incident of
service, including in-service tobacco usage. Thus service
connection may not be granted.
The veteran has asserted that he has asthma and pneumonia
residuals related to his period of active service. As a
layman, he is not competent to render an opinion regarding
diagnosis or etiology, and his statements on such matters do
not serve to make his claim well grounded. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The preponderance of the evidence is against both service
connection claims on appeal. Thus, the rule affording the
veteran the benefit of the doubt does not apply, and the
claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for asthma, on a direct basis and
secondary to tobacco use, is denied.
Service connection for pneumonia is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals